13/5/2024
A project bill (“Bill”) that aims to make the Brazilian Civil Code (“CC”) consistent with the social changes occurred in the past years – such as the existence of non-traditional family structures – has recently been presented to the Brazilian Federal Senate.
The amendment that is to be highlighted here is the one excluding the surviving spouse from the list of individuals rightfully entitled to one’s forced heirship.
Currently, Article 1,845 of the CC establishes that descendants, ascendants, and the surviving spouse are entitled to the forced heirship, which corresponds to 50% of the deceased’s estate.
Even though the current wording of Article 1,845 of the CC only refers to the spouse, its rule should also encompass and be enforceable in relation to common law marriages, as per the prevailing legal doctrine.
In this regard, it is important to mention that since the Brazilian Federal Supreme Court declared Article 1.790 of the CC unconstitutional, spouses and common law marriage companions have been granted equal rights for succession purposes.
If approved, the amendment introduced by the Bill would bring light to the freedom of choice of every individual, regarding the destination of his/her assets in a succession event. Therefore, the importance of a succession planning, even if upon the mere execution of a will, would become more critical.
Upon the conclusion of the voting of the Bill, the Brazilian Federal Senate shall then submit it for the analysis and voting of the House of Representatives.
The deadline for the analysis and voting of the Bill shall vary according to the legislative regime adopted, and, if eventually approved, the Bill shall be subject to presidential sanction.
Co – Authored by: Isabela Rodrigues Alves de Sá e Silva and Marcelo Trussardi Paolini
